Republic v Attorney General & another; Kathenge & 3 others (Interested Parties); Musyoka Kamusina (Exparte) (Environment and Land Judicial Review Case E002 of 2022) [2022] KEELC 2555 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear challenges to consent orders over land, even where succession cases or pending magistrates' court applications exist.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over judicial review orders relating to a consent order in a magistrates' court case concerning land
The court has jurisdiction because the consent order relates to use, occupation of and title to land under Article 162(2)(b) and Section 13 of the ELC Act, and the court may issue prerogative orders under Section 13(7)(b).
The court traced its jurisdiction to Article 162(2)(b) and Section 13 of the ELC Act, and its supervisory jurisdiction over subordinate courts. It found the consent order, which transferred title and occupation of a plot, squarely concerns title to and use and occupation of land. All prayers sought (mandamus, prohibition, certiorari) fall within that jurisdiction, which under Section 13(2)(e) and 13(7)(b) is not exhaustive and includes prerogative orders.
Whether succession proceedings over the same land oust ELC jurisdiction
They do not; the judicial review application sought no orders relating to the succession cause, and Section 13(2)(e) covers any other dispute relating to environment and land.
Relying on Republic v Senior Principal Magistrate Shanzu & 5 others; Two Thirds Investment Limited (Ex-parte Kalama Said Kalama), the court held that the ELC Act's list of disputes is not conclusive and that the source of proceedings (succession, criminal or otherwise) is irrelevant so long as the dispute touches on land and environment.
Whether a pending application in the trial court seeking the same reliefs ousts this court's jurisdiction
It does not; supervisory jurisdiction and the power to issue prerogative orders remain.
The court acknowledged the magistrate's court may deal with the application to set aside the consent order, but held that pendency of such an application does not of itself remove the ELC's supervisory jurisdiction over magistrates' courts or its statutory power to grant prerogative orders under Section 13(7)(b).
Legal principles established
#- The mere fact that land in dispute is the subject matter of a succession cause does not oust the jurisdiction of the Environment and Land Court where the dispute touches on land.
- The ELC has supervisory jurisdiction over magistrates' courts and power to issue prerogative orders under Section 13(7)(b) of the ELC Act.
Court orders
#- 1.The Notice of Preliminary Objection dated March 4, 2022 is dismissed with costs to the Interested Parties
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Attorney General & another; Kathenge & 3 others (Interested Parties); Musyoka Kamusina (Exparte) (Environment and Land Judicial Review Case E002 of 2022) [2022] KEELC 2555 (KLR)", Case Analysis (2022). Judicial Review Application (Notice of Motion dated February 28, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2555/eng@2022-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.